I was going to post this in GilÃ¢â‚¬â„¢s Ã¢â‚¬Å“Literature BluffingÃ¢â‚¬Â thread, but it got too long, so I am putting it in this post.
Let me preface this comment by stating that I have not reviewed the transcript of the Dover trial in detail, and I am basing what I am about to say on the information in the thread to GilÃ¢â‚¬â„¢s post.Ã‚Â The defendantsÃ¢â‚¬â„¢ lawyers in Dover may indeed have done a poor job overall.Ã‚Â I have no opinion on the matter, but on the specific topic discussed in GilÃ¢â‚¬â„¢s post, I think they are getting a bum rap.
Here is the issue.Ã‚Â Several of the commentators wondered, Ã¢â‚¬Å“Why didnÃ¢â‚¬â„¢t the defendantsÃ¢â‚¬â„¢ lawyers object when the plaintiffsÃ¢â‚¬â„¢ lawyers placed a stack of books and articles in front of Behe and asked Ã¢â‚¬Ëœhave you read these articles that refute your testimony about irreducible complexity?Ã¢â‚¬â„¢Ã¢â‚¬ÂÃ‚Â In other words, they want to know why the defendantsÃ¢â‚¬â„¢ lawyers did not object to the literature bluff coming into evidence, and some suggested the lawyers were negligent for failing to make this objection.
In defense of the defendantsÃ¢â‚¬â„¢ lawyers, they may have expected Judge Jones to exhibit a modicum of competence.Ã‚Â Their confidence in the judgeÃ¢â‚¬â„¢s acumen was obviously misplaced, but it was not negligent.Ã‚Â He is, after all, a federal judge.Ã‚Â
Let me explain.Ã‚Â When cross examining the other sideÃ¢â‚¬â„¢s expert it is perfectly fair to attack him by referring to the professional literature in his field.Ã‚Â In fact, the federal rules of evidence have a special exception to the hearsay rule for just this purpose.Ã‚Â Rule 803(18) states:
Ã¢â‚¬Å“(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. Ã‚Â If admitted, the statements may be read into evidence but may not be received as exhibits.Ã¢â‚¬Â
Now here is where it gets interesting.Ã‚Â A literature bluff is evidence of nothing, and a judge can never rely on it in his ruling.Ã‚Â Therefore, a defense lawyer is well within his rights to simply assume the judge will call the bluff and completely disregard the opposing lawyerÃ¢â‚¬â„¢s characterization of the learned treatise.Ã‚Â
Look at the rule again.Ã‚Â It requires two things in order for evidence from a treatise to come in for the purpose of impeaching an expert.Ã‚Â First, the book or article must be established as a Ã¢â‚¬Å“learned treatise.Ã¢â‚¬ÂÃ‚Â Based on the quotes from BeheÃ¢â‚¬â„¢s testimony, it is fairly clear that this step was met.Ã‚Â Behe admitted the books and articles were learned treatises.Ã‚Â
The next step is where the judge screwed up.Ã‚Â In order for the information in the treatises to come into evidence (which is an absolute prerequisite for the judge to rely on them in his opinion), the relevant statements must be read into evidence.Ã‚Â The treatise itself cannot come into evidence.
Here is a truncated example of how rule 803(18) is supposed to work:
Q.Ã‚Â Mr. Expert, in your opinion is the 2002 edition of SmithÃ¢â‚¬â„¢s Ã¢â‚¬Å“How to Build and Maintain WidgetsÃ¢â‚¬Â a reliable authority on the building and maintenance of widgets?
Q.Ã‚Â OK, in your testimony earlier you said that a widget like the one that caused the accident in this case need be oiled only every 20 days.Ã‚Â Do you remember that?
Q.Ã‚Â But look here on page 20 of SmithÃ¢â‚¬â„¢s book.Ã‚Â It says, and I quote, Ã¢â‚¬Å“It is important to oil widgets every 5 days.Ã¢â‚¬ÂÃ‚Â Do you see that?
Q.Ã‚Â So Smith, an expert in the field by your own admission, has a different view than you.
Notice that nowhere in his examination did the cross examining lawyer characterize SmithÃ¢â‚¬â„¢s book.Ã‚Â In order for the contradicting portion of the learnedÃ‚Â treatise to get into evidence, the lawyer has to actually readÃ‚Â it into the record and give the witness a chance to respond.
In short, a literature bluff should be impossible in a federal trial!Ã‚Â
In the Dover case, in order for the relevant portions of the articles to be admitted into evidence, the plaintiffsÃ¢â‚¬â„¢ lawyers should have been required to read them into the record.Ã‚Â Jones committed a grave error in relying on the plaintiffsÃ¢â‚¬â„¢ lawyersÃ¢â‚¬â„¢ characterization of the books and articles.Ã‚Â Of course, none of the treatises provided a detailed account of how cooption could create an irreducibly complex system, and if the judge had done his job in requiring the plaintiffsÃ¢â‚¬â„¢ lawyers to read the relevant portions into the record, it would have effectively called their bluff and we would not be having this discussion.
This is not complicated stuff.Ã‚Â Every law student studies Federal Rule of Evidence 803 in detail.Ã‚Â It seems to me that the defendantsÃ¢â‚¬â„¢ lawyers may have assumed Jones had a basic grasp of the rules of evidence and would not rely upon a lawyerÃ¢â‚¬â„¢s characterization of a learned treatise as evidence of anything, much less critical evidence supporting hisÃ‚Â ruling.Ã‚Â Therefore, they probably thought there was no need to object to the plaintiffsÃ¢â‚¬â„¢ cheap courtroom stunt, because any competent judge would have ignored it.
If anyone was negligent it was the Bush judicial team that allowed Jones to assume the robes in the first place.Ã‚Â The Bush administration Ã¢â‚¬â€œ like so many Republican administrations Ã¢â‚¬â€œ seems to be asleep at the wheel with respect to the appointment of judges.Ã‚Â BushÃ¢â‚¬â„¢s record is not an unmitigated disaster Ã¢â‚¬â€œ there are a few very bright spots Ã¢â‚¬â€œ but how anyone like Jones could wind up on the federal bench is utterly mystifying.Ã‚Â Give the Democrats credit.Ã‚Â They always pick judges who are on their team, while Republicans put ultra-leftists on the court with monotonous regularity.Ã‚Â For examples, Warren and Blackmun were both Republican appointees.Ã‚Â But never in the history of the nation, as far as I am aware, has a Democrat appointed a judge who turned out to be a closet conservative.Ã‚Â
Admittedly the Democrats have a much bigger pool from which to choose, but that is no excuse for Bush.Ã‚Â There are more than enough good state court judges and lawyers to fill every federal vacancy.Ã‚Â There is never a reason to settle for a mediocrity like Jones. Ã¢â‚¬â€œ which is probably an insult to mediocrities.Ã‚Â Of course, the senator spoils system in which the President often defers to home state senators to make recommendations is partly to blame.Ã‚Â The president has to get his nominees through the Senate, and a single senator from the state in which the vacancy is located can derail a nomination (IÃ¢â‚¬â„¢ve seen it happen).Ã‚Â This is an absurd practice that should be ended.Ã‚Â